Efforts to improve legal representation for death-row inmates fail

WASHINGTON — An Alabama electric chair has been awaiting Eugene Clemons for a third of his rough-and-tumble life.

The 36-year-old convicted murderer once confessed to killing a federal drug agent. Now, he protests his innocence in the 1992 slaying. He spends his death-row days seeking pen pals and hoping for a new trial in a state whose policies can impede a strong defense.

“I am willing to have your back at all times,” Clemons promises potential pen pals on one Web site, “even when you don’t think it’s exposed.”

In January, a McClatchy Newspapers’ investigation revealed weak legal representation of death-row inmates in Alabama and three other southern states. Seventy-three of the 80 cases reviewed in Alabama, Georgia, Mississippi and Virginia showed serious shortcomings during the crucial arguments that the jury considers before deciding on life or death.

In the eight months since, little has changed. If anything, critics believe that recent court decisions, legislative inaction and a pending shift of authority to the Justice Department could exacerbate conditions. “The legislature has done absolutely nothing, and the problem has just gotten worse,” said Bryan Stevenson, director of the Alabama-based Equal Justice Initiative.

In the Alabama Senate, a bill to improve legal representation in capital cases died again. Alabama doesn't guarantee attorneys for indigent death-row inmates and caps lawyers' pay for post-conviction work at $1,000.

In Georgia, the state’s public defender organization dealt with a 10 percent budget cut by firing 41 full-time employees and all its part-time workers.

Still, some states did make marginal improvements. Virginia, for instance, added millions of dollars to its overall indigent defense program. Virginia also will start allowing public defenders to request a waiver from the state's stringent fee cap. The waiver could increase to $2,085 the amount lawyers are paid for defending people accused of felonies.

In June, the U.S. Supreme Court turned down a chance to order improvements in capital-case legal representation. And as fall approaches, Attorney General Alberto Gonzales — a death-penalty advocate — wants to take the power from federal judges to decide whether states have adequate programs for defending death-row inmates.

Next month, the Supreme Court will have another chance to weigh in on the adequacy of the defense in the penalty stage of murder trials.

The case involves Christopher Scott Emmett of Virginia, who is scheduled to be executed on Oct. 17.

Emmett confessed to killing a sleeping co-worker in 2001 by smashing him in the head with a brass lamp. He then stole $100 to buy crack cocaine. Emmett, now 36, subsequently claimed his court-appointed attorney didn’t present mitigating evidence about an impoverished and abusive upbringing.

The Supreme Court on Sept. 24 will decide whether to hear Emmett’s appeal. Few expect it will. Appellate judges already concluded that Emmett’s attorney performed satisfactorily and had sound tactical reasons for keeping Emmett’s past under wraps.

Emmett’s "extensive history of criminal conduct from the age of seven would have substantially bolstered the prosecutor’s argument that Emmett was a ruthless, calculating, lifelong criminal who stopped not even to spare those close to him from his crimes,” the 4th Circuit Court of Appeals concluded earlier this year.

Circuit Judge Roger Gregory dissented, contending Emmett’s attorney did only a “cursory” job at fleshing out the horrendous nature of Emmett’s upbringing.

“Emmett’s siblings remembered there was never enough food to eat, so … they occasionally had to steal food,” Gregory wrote, and when a social worker visited, “the children were extremely dirty, and the only furniture in good condition was a fully stocked gun cabinet.”

The Justice Department is now reconsidering who evaluates the adequacy of state programs that provide defense attorneys in capital cases. For the past decade, federal judges have had the power to evaluate defense programs. Now, the Justice Department is preparing to take over.

The pending change revolves around the habeas corpus petitions filed by prisoners challenging their convictions and sentences.

On average, prisoners file more than 18,000 habeas corpus petitions annually, with roughly 200 representing death-penalty cases. To curb these, Congress in 1996 said a state could impose tighter habeas corpus restrictions if a federal court certified the state as having an effective program for providing defense lawyers.

It was meant as a bargain. Prisoners would get better lawyers, and states would get streamlined procedures. For instance, prisoners in certified states would have six months to file a petition, instead of one year. So far, only Arizona has been certified.

Late last year, though, Congress amended an anti-terrorism law to give the attorney general instead of federal courts the power to certify state capital-case defense programs as adequate.

Critics consider this a fatal conflict of interest.

“The attorney general is the adversary of criminal defendants and their counsel,” Oakland, Calif., attorney Robert Bacon noted in a written filing. “It is not reasonable to expect him or her to vouch for the adequacy of the defense services the state makes available.”

The Justice Department is now weighing public comments.

In time, the Supreme Court could revisit the question of death-row inmates and their lawyers. That may take a while, though. Justices had another chance earlier this year, in a lawsuit filed by Eugene Clemons and other prisoners led by fellow Alabama death-row inmate Christopher Barbour.

Barbour and Clemons claimed they didn’t get the legal defense they deserved under the Constitution. Barbour, like Clemons, once confessed to a 1992 crime he now denies.

A jury convicted Barbour of helping hold 40-year-old Thelma Roberts down while a friend raped her. Then, the jury found, Barbour stabbed Roberts nine times with a butcher knife and set her corpse on fire. Her 16-year-old son found her remains, the knife still stuck in her chest.

Barbour’s original attorney, a civil law specialist, acknowledged struggling with the complexities of a case that included disputes over Barbour’s alleged mental incapacity caused by a severe childhood head injury.

“I felt I wasn’t the best qualified person to do it,” attorney Frank Riggs testified.

In June, without comment, the Supreme Court rejected the petition filed by Barbour and Clemons.

“If we lived in a perfect world, which we do not, we would like to see the inmates receive the relief they seek in this case,” the 11th Circuit Court of Appeals had declared earlier. Unfortunately, the judges added, neither the Constitution nor Supreme Court precedent guarantees a perfect world.